Fairbanks v. Farwell

Citations

• 141 Ill. 354
• 30 N.E. 1056

Syllabus

<p>„ 1. Chancery suit—commencement, to arrest running of the Statute of Limitations. The modern rule seems to be, that the filing of a bill and taking out of a subpoena, and making a bona fide, attempt to serve it, is the commencement- of a suit in equity, as against the defendant, so as to prevent the operation of the Statute of Limitations. But it may well be doubted whether the mere filing of a bill, of itself, without the issue or service of process, is sufficient to arrest the running of the statute.</p> <p>2. Chancery practice—permitting amendment to a bill by substituting complainant and making a different case. After this court had decided that a receiver of an insurance company was not entitled to the relief sought by his bill against stockholders, for the reason that he took by his office no greater rights than the corporation had, certain judgment creditors of the corporation filed their intervening petition to be substituted as parties complainant in the place of the receiver, so as to make an entirely different suit, in which they might present equities which the law denied to the receiver. The court denied the petition : Meld, that there was no error in refusing the prayer of the petition, such an amendment not being warranted by any rule of chancery practice, or by the statute of amendments applicable to the case.</p> <p>3. While the statute in relation to amendments should receive a liberal construction, it should not be so construed as to make it the duty of the court to permit amendments which not only result in a change of parties, but which also work an entire change in the subject matter of the litigation and the nature and object of the proceeding.</p> <p>4. The consent of a complainant in a bill that another claiming different equities may be substituted in his place and control the litigation, will not give such other persons a legal right to be substituted which the court may not refuse. The most that can be said is, that such consent invest